Kedar Nath vs Poonam Chand

Bela M. Trivedi, J.—The present second appeal filed by the appellant-plaintiff under Section 100 of CPC arises out of the judgment & decree dated 07.05.1990 passed by the Additional District Judge No. 2, Bharatpur (Camp Bayana) (hereinafter referred to as "the appellate court") in Civil Appeal No. 5/83, whereby the appellate court has dismissed the appeal and confirmed the judgment & decree dated 15.04.1980 passed by the Court of Munsiff & Judicial Magistrate (First Class) Bharatpur (hereinafter referred to as "the trial court") in Civil suit No. 78/70.

The short facts giving rise to the present appeal are that initially, Shri Poonam Chand and his brother Shri Champalal were the joint owners of two shops. On partition having taken place between them, somewhere in 1963, the shop situated on the western side fell into the share of Shri Champa Lal and the other shop situated on the eastern side fell into the share of Shri Poonam Chand. On 22.05.1963, the appellant-Kedar Nath who was the tenant of the shop on western side purchased the said shop from Shri Champa Lal vide registered sale deed (Exhibit-1), and the respondent No. 2 Shri Kalyan Prasad and the respondent No. 3 Shri Mahesh Chand (original-defendant Nos. 2 & 3) purchased the shop situated on the eastern side from Shri Poonam Chand, (in which the respondent Nos. 4 & 5 were the tenants), vide the registered sale deed dated 27.12.1968 (Exhibit-10). It further transpires that there was one Bukhari, a space below the stair case situated in between the said two shops, the corpus of which was part of the appellant''s shop, and the opening thereof was in the shop of the respondent Nos. 2 & 3. The appellant-plaintiff therefore filed the suit seeking possession of the said Bukhari, alleging inter alia that the Bukhari was sold out to him as per the sale deed executed by Shri Champa Lal, and that at that time, Shri Poonam Chand had also assured him that possession of Bukhari would be handed over to the appellant. According to the appellant since the said possession of the Bukhari was not handed over, he had filed the suit against the respondents-defendants.

The said suit was resisted by the respondents-defendants by filing their respective written statements. The respondent No. 1-defendant No. 1, Shri Poonam Chand had contended inter alia that the opening of the Bukhari was in the shop situated on the eastern side, and was being used by the defendants-tenants. He denied that the said Bukhari was to be handed over to the appellant. The respondent Nos. 2 and 3 had contended in their written statement that they had purchased the shop on the eastern side from the respondent No. 1 Poonam Chand, alongwith all appurtenant and easementry rights. It was also contended that the appellant was sold the stair case constructed over the Bukhari, however the Bukhari was not sold out to him. The respondent Nos. 4 & 5 had contended inter alia that though the Bukhari did not belong to the appellant, he was trying to take possession of the Bukhari forcibly, and hence they had filed one suit seeking injunction against the appellant, which was pending. The trial court from the pleadings of the parties had framed the following issues:-

After appreciating the evidence on record, the trial court decided issue Nos. 1 & 4 against the appellant-plaintiff by holding that the appellant-plaintiff had failed to prove that he had become the owner of the disputed Bukhari pursuant to the sale deed executed by Shri Champa Lal in his favour, and also failed to prove that Shri Poonam Chand had assured him to hand over the possession of the said Bukhari. The issue No. 2 was decided against the defendant No. 1 Poonam Chand by holding that he was not the owner of the said Bukhari. The trial court decided issue No. 3 against the respondent Nos. 2 & 3 by holding that they were not the owners of the disputed Bukhari, and that the said Bukhari was not the appurtenant to the shop purchased by them vide the sale deed dated 27.12.1968. The issue No. 5 was decided in favour of the respondent Nos. 4 & 5 by holding that it was not disputed that the respondent Nos. 4 & 5 were the tenants of the shop in which there was opening of the disputed Bukhari. The trial court after appreciating the evidence on record dismissed the suit vide the judgment & decree dated 15.04.1980.

Being aggrieved by the said judgment & decree, the appellant-plaintiff had preferred the appeal and the respondent Nos. 2 & 3 i.e. Shri Kalyan Prasad and Shri Mahesh Chand had filed the cross objections. The appellate court vide the impugned judgment & decree dated 07.05.1990, dismissed the appeal of the appellant Shri Kedar Nath, and partly allowed the cross objections filed by the respondent Nos. 2 & 3, by holding that though the disputed Bukhari could not be said to be the appurtenant to the shop of the respondent Nos. 2 & 3, the respondent No. 1 Poonam Chand and his successors in interest had become the owners of the disputed Bukhari on account of the long user and occupation of the said Bukhari by their tenants i.e. the respondent Nos. 4 & 5. The appellant court, therefore, modified the findings on issue No. 2 recorded by the trial court accordingly. Being aggrieved by the said judgment and decree passed by the first appellate court, the appellant had preferred the present second appeal.

On 30.10.1990, this Court while admitting the second appeal had formulated following substantial questions of law:-

"(1) Whether the user by the respondent Sri Poonam Chandra and his tenants, respondent Nos. 4 & 5 and his successor-in-interest, respondent nos. 2 & 3 for six years, namely between 1963 to 1970 could be said at all to be a long user. Assuming that the same is a long user, could it be said that there was transfer of title of eastern shop by adverse possession or otherwise in any of the respondents including the successor-in-interest of respondent Sri Poonam Chand?

(2) Whether learned lower courts committed serious error of law when they gave undue importance to the opening of the Bukhari in the shop on the eastern side when the entire corpus of the said Bukhari was shown to have been included in the sale deed (Ex. 1) in favour of the Appellant?

At the outset, it may be stated that on account of on going strike for more than sixty days in the High Court, the counsels for the parties were not remaining present, and hence the parties were permitted to submit their respective written submissions, over and above oral submissions. Accordingly, the appellant appearing party in person had submitted that in both the sale deeds i.e. Exhibit-1, by which Shri Champa Lal sold the shop on the western side to him, and in the sale deed Exhibit-10 by which Shri Poonam Chand sold the shop on the eastern side to the respondent Nos. 2 & 3, the site plans were drawn, according to which the disputed Bukhari was shown as sold out to the appellant. According to him, since the opening of the Bukhari was in the shop of Shri Poonam Chand, he had orally agreed to hand over the possession of Bukhari to the appellant. He further submitted that the partition having taken place between Shri Champa Lal and Shri Poonam Chand in the year 1963 and the suit having been filed by the appellant in the year 1970, the period of 7 years could not be said to be a long period to create ownership right in favour of the respondent Nos. 2 & 3 by adverse possession as held by the appellate court, and that too without any plea of long user/adverse possession taken by the said respondents in their written statement. He further submitted that the courts below have misconstrued the documents on record more particularly the sale deeds (Exhibit-1) and (Exhibit-10), and have committed error in not holding that the disputed Bukhari belonged to the appellant only. It is also submitted that though the respondent No. 1 Poonam Chand was not examined in the present suit, he was examined as a witness in another suit filed by the respondent Nos. 4 & 5 for fixation of standard rent, in which the respondent No. 1 had stated that the Bukhari in question was not sold out to the respondent Nos. 2 & 3 and that the same was sold out by Shri Champa Lal to the present appellant. Even the respondent Nos. 2 & 3 had never claimed that the disputed Bukhari was sold out to them by Shri Poonam Chand. It is further contended that the issue of long user was never raised before the trial court and the appellate court had created a new case in favour of the respondent No. 1 and the other respondents by holding that the respondent No. 1 had become the owner of the disputed Bukhari on account of long user and occupation by his tenants for more than 20 years. It has also been contended that the finding on issue No. 5 recorded by the appellate court is contradictory inasmuch as on one hand the appellate court had held that the respondent Nos. 4 & 5 could not be said to be the tenants of Bukhari on account of the long user and occupation of the same, and on the other hand treating the use of the tenants as the use by the owner, the respondent No. 1 has been held to be the owner of the Bukhari. The appellant has also relied upon the decisions of the Apex Court in case of S.M. Karim Vs. Mst. Bibi Sakina, and in case of Sheodhari Rai and Others Vs. Suraj Prasad Singh and Others, , to submit that long possession or permissive possession could not necessarily be said to be the adverse possession. The appellant has also relied upon the decision of the Apex Court in case of K.S. Nanji and Company Vs. Jatashankar Dossa and Others, , to submit that the map attached to the deed should be treated as incorporated in the deed itself and that in the instant case the disputed Bukhari being the space below the staircase sold out to the appellant as per the map annexed to the sale deed Exhibit-1, both the courts had committed an error of law in not decreeing the suit of the appellant.

The respondent Nos. 2 & 3 have submitted the written arguments, contending inter alia that the appellant-plaintiff had failed to prove before the courts below that he was the owner of the disputed Bukhari. According to them, the disputed Bukhari having opening in the shop of the said respondents, was not being used by the appellant, and that the said Bukhari having been situated beneath staircase, was never purchased by the appellant. As against that there was sufficient evidence to show that the said Bukhari was being used by the respondent Nos. 4 & 5 since years, as the tenants, and therefore the respondent No. 1 and his successor in interest were entitled to retain the possession. Placing heavy reliance on the findings recorded by both the courts below as regards the issue No. 1 to the effect that the plaintiff had failed to prove his title over the disputed Bukhari, the said respondents have submitted that this Court should be slow in interfering with the concurrent findings of facts recorded by the courts below. The respondents have relied upon the decision of the Apex Court in case of Christopher Barla Vs. Basudev Naik (D) by Lrs., , in case of Rajgopal (Dead) by Lrs. Vs. Kishan Gopal and Another, , and in case of H.P. Pyarejan Vs. Dasappa (Dead) by LRs. and Others, in this regard. It has been further submitted that the rights of the parties would be derived from the recitals made in the document, and not from the map annexed to the document. It has also been submitted that the statement of the respondent No. 1 Poonam Chand recorded in some other suit was not proved by the appellant, and therefore both the courts below have rightly discarded the same, being inadmissible in findings. In short the respondent Nos. 2 & 3 have supported the findings recorded by the first appellate court and prayed to dismiss the appeal. The legal heirs of the original respondent No. 1 and respondent Nos. 4 & 5 have chosen not to contest the present appeal.

Now, so far as the question No. 1 formulated by the Court is concerned, it is required to be noted that no plea either of long possession or of adverse possession was raised by any of the respondents-defendants in their written-statements filed before the Trial Court. The Trial Court also therefore had not framed any such issue as to whether the respondents/defendants had become the owners of the disputed Balkani on account of their long use or of adverse possession. It was the Appellate Court, which without any pleadings or proofs led by the parties had held while deciding the issue No. 2 that the respondent No. 1-Punam Chand and his successor in interest-the respondent Nos. 2 and 3 had become owners of the Bukhari in question because of the user of the said Bukhari for more than 20 years by the tenants i.e. the respondent Nos. 4 and 5. It is also pertinent to note that the Appellate Court had not accepted the plea of the respondent Nos. 2 and 3 that the Bukhari in question was the space appurtenant to the eastern shop of the respondents. It is needless to say that the Court cannot create a new case for the parties, and that too at an appellate stage and without there being any plea or contention raised by the respondents-defendants as regards they having become owners by adverse possession. It is also settled legal position that the plea of open, uninterrupted and continuous possession, for more than 12 years, hostile to the true owner is required to be raised by the defendants for claiming ownership by adverse possession, and in absence of any such plea raised in the pleadings the Appellate Court has committed serious error in the impugned judgment and decree by creating new case in favour of the respondents. The appellant has rightly relied upon the decision of the Apex Court in case of S.M. Karim vs. Mst. Bibi Sakina (supra) and in case of Sheodhari Rai & Ors. vs. Suraj Prasad Singh (supra) to substantiate his submissions that the adverse possession must be adequate in continuity, in publicity, and extent and a plea is required at least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. Long possession is not necessarily adverse possession and the permissive possession by the true owner would not be adverse till the defendant asserts adverse possession in his plea. Apart from the fact that none of the respondents, more particularly the respondent Nos. 2 and 3 had raised any such contention in their written-statement that they had become owners by adverse possession of the Bukhari in question because of the long use of the said Bukhari by the respondent Nos. 4 and 5 as the tenants, no evidence was also led in that regard by the respondents. It is needless to say that use by the tenants also cannot be said to be the use of premises by the landlord adverse to the true owner by any stretch of imagination, let apart in the instant case it was neither pleaded nor proved as to when the point of limitation had started running against the appellant-plaintiff. The Appellate Court has held that the Bukhari in question could not be said to be the space appurtenant to the shop, but opening of the said Bukhari being in the shop of the respondent Nos. 2 and 3, their long use and possession for more than 20 years through their tenants i.e. the respondent Nos. 4 and 5, had made them owners by adverse possession. In absence of any such plea or evidence muchless cogent evidence with regard to the respondents having become owners by adverse possession of the Bukhari in question, such a finding of the Appellate Court is required to be held as perverse and illegal.

The Appellate Court also appears to have misinterpreted the evidence on record and recorded perverse findings as regards the use and possession of the Bukhari in question by the respondents. It was not disputed that the Bukhari in question was the space situated beneath the staircase of the two shops - originally belonging to shri Champa Lal and Shri Punam Chand jointly. On partition having taken place, the shop situated on the western side fell into the share of Shri Champa Lal, which was purchased by the appellant Kedar Nath vide the registered sale deed dated 22/5/1963 (Ex. 1), and that the shop situated on the eastern side fell into the share of Shri Punam Chand, who sold out the same to the respondent Nos. 2, 3 i.e. Kalyan Prasad and Mahesh Chand vide the sale deed dated 27/12/2008 (Ex. 10). It was also not disputed that the respondent Nos. 4 and 5 were the tenants of the respondent Nos. 2 and 3 when the suit was filed by the appellant-plaintiff in the year 1970. It was also not disputed that the Bukhari in question was opening in the shop of the respondent Nos. 2 and 3 and the corpus thereof was in the shop of the appellant. Now, if the sale deed at Ex. 1 by which the appellant had purchased the shop on the western side, and the sale deed Ex. 10 by which the respondent Nos. 2 and 3 had purchased the shop on the eastern side from the respondent No. 1 are perused, then it clearly emerges that the appellant had purchased the shop on the western side along with the staircase with all rights from the foundation till the roof. The map, which was part of the registered sale deed-Ex. 1 clearly shows the area purchased by the appellant, shown in red colour, which includes the staircase and the Bukhari situated beneath the staircase. As against that the sale deed Ex. 10 by which the respondent Nos. 2 and 3 had purchased the shop on the eastern side from the respondent No. 1 Punam Chand, does not show anything about the purchase of Bukhari by the respondent Nos. 2 and 3. The map annexed to the said sale deed showing the area of shop purchased by the respondent Nos. 2 and 3 does not include the part of Bukhari. Significantly, the respondent Nos. 2 and 3 have also not taken up the plea in their written-statement that they had purchased the Bukhari in question from the respondent No. 1, nor the respondent No. 1 has stated in his written statement that the Bukhari in question was sold out by him to the respondent Nos. 2 and 3 vide the sale deed Ex. 10. Only contention raised by the respondent No. 1 in his written statement was that the opening of Bukhari was in his shop and that he had never agreed to give the possession of the said Bukhari to the appellant. Apart from the fact that the said respondent No. 1 Punam Chand had not stepped into the witness box, though specific application was made by the appellant requesting the Court to examine him, the said respondent No. 1 in one another suit filed by the respondent Nos. 4 and 5 for fixation of standard rent, had admitted in the proceedings under Order X, Rule 1 that the Bukhari in question was sold by his brother Shri Champalal to Kedarnath in the year 1963. The said statement of the respondent No. 1 is on record at Ex. 7. The respondent Nos. 2 and 3 in their respective evidence before the Trial Court had also not stated anything about they having purchased the Bukhari in question from the respondent No. 1. The First Appellate Court therefore had rightly held that the Bukhari in question was neither sold out by the respondent No. 1 to the respondent No. 2 and 3, nor it was appurtenant to the shop of the respondent No. 2 and 3. However, the Appellate Court certainly committed an error by giving undue importance to the opening of the Bukhari in the shop of the respondents, when the entire corpus was shown to have been included in the sale deed Ex. 1 executed in favour of the appellant plaintiff. As stated hereinabove, the Appellate Court has further committed a serious fallacy in creating a new case for the respondents and in holding without plea or evidence that the respondent No. 1 and his successor in interest i.e. the respondent Nos. 2 and 3 had become the owners of the Bukhari in question by adverse possession merely because the opening of the said Bukhari was in the shop of the respondents, and was being used by their tenants i.e. the respondent Nos. 4 & 5. It is settled legal position that mere long use of disputed premises by the tenants would not make the landlord, the owner by adverse possession. Permissive possession could not be said to be possession hostile to the true owner. In that view of the matter, it is required to be held that the appellant being the owner of the Bukhari in question as per the sale deed Ex. 1, he is entitled to recover the possession of the same from the respondents.

For the reasons stated above, the questions raised by the Court while admitting the second appeal deserve to be answered in favour of the appellant, by holding that use of Bukhari by the tenants i.e. the respondent Nos. 4 and 5 even though considered as long use, could not amount to transfer of title in favour of the respondent No. 1 or his successor in interest the respondent Nos. 2 and 3. It is also further required to be held that the Courts below had also committed serious error of law in misreading and misinterpreting the sale deeds at Ex. 1 and Ex. 10 and in giving undue importance to the opening of the Bukhari in the shop of the respondents on the eastern side, when the entire corpus of said Bukhari was shown to have been included in the sale deed Ex. 1, as purchased by the appellant. Though it is true that this Court should be slow in interfering with the concurrent findings of facts recorded by Courts below in the second appeal filed under Section 100 of CPC, it may be noted that as held in case of Hero Vinoth (minor) Vs. Seshammal, , where the Courts below have ignored material evidence or acted on no evidence, or the Courts below have drawn wrong inferences from proved facts by applying the law erroneously, or where the Courts have wrongly cast the burden of proof, the High Court can interfere with the concurrent findings of facts recorded by the Courts below. In the instant case, the Trial Court having recorded erroneous findings, misinterpreting the evidence on record and the Appellate Court having acted on no evidence and created new case for the respondents, this Court has no alternative but to interfere and set aside the judgments and decrees passed by the Courts below.

In that view of the matter, the judgments and decrees passed by the Courts below being erroneous and illegal are set aside. The suit of the appellant-plaintiff is decreed. The respondents are directed to hand over possession of the Bukhari in question to the appellant forthwith.

The appeal stands allowed accordingly.